Recreational Use Statute

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July 28, 2009

Hiker Hurt in Whose Woods?

Connecticut passed the Recreational Land Use Act in 1971, commonly known as the Recreational Use Statute.[1] At present, virtually all jurisdictions have enacted recreational use legislation in one form or another. Essentially, a recreational use statute simplifies and limits the duty of the landowner or occupier towards visitors who do not pay a "fee," or "charge" for entering the premises for a variety of recreational purposes.

Under traditional common law principles, the liability of an owner or occupier of land for injuries to an entrant caused by a condition or activity conducted on the land was determined by a somewhat rigid and mechanical system of classification, based solely upon the entrant's status as an invitee, licensee, or trespasser.[2] The Recreational Use Statute drastically altered these principles. Except where there is consideration,[3] the Act fundamentally changed the law by shifting the burden of liability for injuries from the land occupier to the entrant, regardless of his classification at common law. This fundamental change is consistent with the underlying objective of the legislation of encourage free use of land. The Act reflects the judgment of the legislature that the public benefit of attracting private landowners to allow their land to be used outweighs the risk of potential injuries.

The statute provides an illustrative list of recreational purposes: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning, and viewing or enjoying historical, archaeological, scenic or scientific sites.[4] Recreational uses include organized activities and team sports.[5] In those cases where the courts have expanded on the list contained in Conn. Gen. Stat. § 52-557f(4), those activities recognized as being "recreational" constitute physical, participatory, outdoor activities.[6]

The immunity applies to undeveloped open spaces (the primeval forest), such as woodlands, field, or lakes, as well as improved land such as playgrounds or ball fields.[7] The effect of the legislation has been to change the focus of liability in recreational premises cases away from the status of the entrant, and toward an analysis of the type of property involved, as well as the entrant's purpose in coming onto the premises. Thus, for purposes of determining the landowner's liability under the Recreational Use Statute, a recreational entrant is treated as an ordinary trespasser to whom no duty of care is owed, except to refrain from willful or malicious injury, unless the injured entrant has given some "consideration" or has paid a "charge" to enter the premises. Only then would the recreational landowner be required to exercise reasonable care with respect to an injured entrant.

For instance, where a nature center operated by a non-profit corporation that leased land from the State was open to the public for hiking free of charge, and there was no evidence that the center acted willfully, maliciously, or intentionally in failing to warn a hiker of the potential hazardous condition represented by a fallen tree, Conn. Gen. Stat § 52-557f et seq. immunized the center from liability to the hiker for injuries sustained when she fell over the tree.[8]

The Act does not apply to municipalities. In Conway v. Wilton[9] , a lengthy opinion detailing the history and evolution of recreational land-use immunity, the court determined that its earlier decision, Manning v. Barenz,[10] had been wrongfully decided, and that towns and municipalities had never been intended to fall within the scope of the recreational land-use act.

[1] Conn. Gen. Stat. §§ 52-557f through 52-557i.

[2] Morin v. Bell Court Condominium Association, Inc., 223 Conn. 323, 327-28 (1992).

[3] Conn. Gen. Stat. § 52-557h.

[4] Conn. Gen. Stat. §§ 52-557f(4); Cooley v. Fidco, Inc., 1996 Conn. Super. LEXIS 1899.

[5] Scrapchansky v. Plainfield, 226 Conn. 446 (1993).

[6] Busa v. City of Bridgeport, 1994 Conn. Super. LEXIS 1429 (watching marching band festival not recreational purpose).

[7] Scrapchansky v. Plainfield, 226 Conn. 446 (1993).

[8] Conklin v. Woodcock Nature Center, 1997 Conn. Super. LEXIS 997.

[9] Conway v. Town of Wilton, 238 Conn. 653 (1996).

[10] Manning v. Barenz, 221 Conn. 653 (1992).